In re D.H.
For Appellee
CHRISTOPHER ZUERCHER
Richland County Children‘s Services
731 Scholl, Ste. 202
Mansfield, OH 44902
For Appellant
BYRON CORLEY
3 North Main Street, Ste. 602
Mansfield, OH 44902
{¶1} Father appeals the June 24, 2021 judgment entry of the Richland County Court of Common Pleas, Juvenile Division, terminating his parental rights and granting permanent custody of D.H. to the Richland County Children Services Board (“RCCS”).
Facts & Procedural History
{¶2} F.H. is the Father (“Father”) of D.H., who was born on July 24, 2019. M.A. is the Mother (“Mother”) of D.H.
{¶3} On September 18, 2019, RCCS facilitated the voluntary placement of D.H. with Mother‘s oldest child, J.A., and his wife.
{¶4} On October 3, 2019, RCCS filed a complaint alleging D.H. was a dependent and abused child. The complaint alleged, in part: D.H. testеd positive for cocaine at birth, Father has a history of drug use, Father has no stable residence or the means to assume care of D.H., and Mother and Father have a history of domestic violence. The complaint requested a disposition of temporary custody to J.A. and his wife, with a grant of protective supervision to RCCS.
{¶5} The trial court held an adjudicatory hearing in November of 2019. In a December 13, 2019 judgment entry, the trial court found D.H. was a dependent child. In a February 7, 2020 judgment entry, the trial court placed D.H. in the temporary custody of RCCS. RCCS maintained the placement of the сhild with J.A. and his wife while they completed foster parent certification.
{¶6} The trial court adopted and approved the case plan in February of 2020. The presenting problems for Father included: history of domestic violence, economic struggles, a history of substance abuse, and unknown parenting skills. Pursuant to the
{¶7} On August 31, 2020, RCCS filed a motion to extend temporary custody to RCCS. The trial court granted the motion on October 7, 2020.
{¶8} RCCS filed a motion for permanent custody of D.H. on March 1, 2021. Father filed a motion for visitation on April 29, 2021.
{¶9} The magistrate held a trial on the motion for permanent custody and Father‘s motion for visitation on June 14, 2021.
{¶10} J.A. is the older brother of D.H., and is her current foster parent. He testified that his family, including his children, are very bonded to D.H. He and his wife work different shifts so that one of them can always be home with the children. D.H. is doing well dеvelopmentally, and is very smart. Members of her extended family sometimes come to visit with D.H. J.A. and his wife finished the foster program specifically so they could apply to adopt D.H.
{¶11} On cross-examination, J.A. testified he did not think legal custody was a good idea because, if D.H. was involved with either Mother or Father, she would be exposed to drugs.
{¶12} Shannon Thompson (“Thompson”) has been D.H.‘s caseworker since D.H.‘s birth in 2019. D.H. was originally removed from the home because she tested positive for cocaine at birth. There were also concerns because Mother and Father moved around a lot, lacked stability, and there was a history of both substance abuse and
{¶13} At the beginning of the case in July of 2019, D.H. was placed with Mother‘s parents. That became unworkable when Mother‘s father died. D.H. was then placed with J.A. and his family in September of 2019. D.H. has been in the temporary custody of RCCS for more than twelve months of a consecutive twenty-two-month period.
{¶14} Case plan objectives for Father included: complete a substance abuse treatment program; AOD counseling; submit to random drug testing; demonstrate sobriety for at least six months; complete a mental health assessment and follow all recommendations; demonstrate general economic and residential stability; and complete parenting classes. Father has not substantially complied with his case plan. Father attempted to start counseling, but was discharged for non-compliance for failing to appear for appointments. This happened multiple times. Thompson testified Father thought one counselor did not want to work with him, so they tried different counselors. Father is currently in counseling; however, this was part of his probation for a domestic violence conviction against Mother.
{¶15} Father recently gave Thompson the names of people he is working with at Catalyst, a counseling service. Thompson requested records from them, but had not received them at the time of the hearing.
{¶16} Father consistently failed his drug tests, testing positive mostly for marijuana. This is a concern for the agency due to the history and continued drug use оf Father, and concern about Father being impaired while parenting. Father and Mother are
{¶17} Father last visited D.H. on August 28, 2020. The visits were suspended after September of 2020 because Thompson could not locate Father. This was the second time visits had been suspended. Two months prior to the hearing, after RCCS filed their motion for permanent custody, Father asked to resume visits, and Thompson was working on resuming visitation. However, there are certain requirements that must be met to reinstitute visitation. The issue with starting the visits was that Father was required to have a clean drug test before the agency would schedule visitation. Father only recently was able to return a clean drug screen. Throughout the case, Father never made sufficient progress on his case plan to justify an expansion beyond supervised visitation at the agency.
{¶18} When asked on cross-examination about whether Father would now be allowed to visit, Thompson testified she needed to speak with Father‘s probation officer because Father told Thompson that he relapsed a month ago on cocaine. Thus, Thompson needs to contact the probation officer to see the results of the drug test administered by the probation officer.
{¶19} D.H. does not know Father or Mother as her parents. Thompson has seen D.H. with her foster family. She is very bonded to them.
{¶20} Thompson does not believe legal custody, as opposed to рermanent custody, is in the best interest of D.H. Thompson believes that permanent custody to
{¶21} Father has been on probation for a domestic violence conviction since February 18, 2021. He is in mental health counseling and a domestic violence group. These are court-ordered through his probation. Father testified he is currently in drug and alcohol counseling that is not court-ordered. Father admitted he had a relapse with cocaine approximately two months prior to the hearing. His probation officer gave him a warning and he has not tested positive since. Father objects to permanent custody being granted to RCCS because he wants to take care of his daughter. Father also does not like D.H. living with J.A. because J.A. does not like Father due to his domestic violence history against Mother.
{¶22} Father stated he now works doing odd jobs such as lawn mowing, snow plowing, and cleaning. He “eventually” will be moving out of D.H.‘s maternal grandmother‘s home. Father believes he will be in a position in the next two to four months to provide a home for D.H. Father has not yet looked into parenting classes, but he plans to.
{¶23} On cross-examination, Father testified he has approximately three months left in his court-ordered counseling program and six months left in his court-ordered domestic violence group. Father missed approximately seven months of visits and testified he missed these visits because he lost his phone, he needed to visit his sick mother, and did not have transportation. Father has multiple previous domestic violence convictions, but Mother was not the victim in any of them except the most recent one.
{¶25} The magistrate also admitted into evidence the CASA/GAL report filed on June 7, 2021 by guardian ad litem JoAnn Frantz. The GAL recommended that D.H. be placed into the permanent custody of RCCS. The GAL went through each of the best interest factors in her report. The GAL stated that while D.H. is too young to express her wishes and concerns, she is very happy and content in her foster home. As to relationships, Father has not seen D.H. in over a year, was often a no-show at visits, and has shown a lack of commitment to D.H. J.A. and his wife think of and treat D.H. as their daughter. Father resides with Mother‘s mother in a bug-infested home that has no electricity. J.A. and his wife live with her two children in a three-bedroom apartment. Father is working “under the table.” J.A. and his wife provide a stable and loving home for the child and have completed foster parent classes.
{¶26} The GAL stated that D.H. cannot be reunited with either parent with a reasonable amount of time or should not be reunited with them because neither parent remedied the conditions that first existed when the child was removed from the home. Father does not have stable housing and does not have consistent employment. Father was charged with assault in 2017, OMV while under suspension in 2020, and domestic violence in February of 2021.
{¶27} The magistrate issued a judgment entry granting RCCS‘s motion for permanent custody on June 24, 2021.
{¶29} The magistrate found that, in the alternative, D.H. cannot and should not be placed with either of her parents within a reasonable рeriod of time, and listed the following reasons for its determination: both parents have failed continuously and repeatedly to substantially remedy the conditions causing such placement as they both have failed to comply with the provisions of their case plans. Specifically, with regards to Father, he does not have a current residence that is suitable or appropriate for a child; and he has not successfully completed a mental health assessment, a substance abuse treatment program, or a parenting class. Further, Father has failed to supрort, visit, or communicate with D.H. when able to do so, and has also shown an unwillingness to provide an adequate permanent home for D.H. The trial court found that Father only recently elected to confront his substance abuse issues, due in no small part to his current probation terms, which require him to participate in a domestic violence counseling program. Further, Father and Mother chose to travel a significant distance to stay with Father‘s mother. Father has never contributed to the financial support of D.H.
{¶30} The magistrate then did a detailed analysis of the best interest factors contained in
{¶31} The magistrate also found RCCS made reasonable efforts to eliminate the continued removal of the child from the child‘s home and return the child to the home by providing reasonable and relevant case planning and management.
{¶32} The trial court issued a judgment entry on June 24, 2021 approving and adopting the magistrate‘s decision.
{¶33} Fаther appeals the June 24, 2021 judgment entry of the Richland County Court of Common Pleas, Juvenile Division, and assigns the following as error:
{¶34} “I. THE TRIAL COURT DID NOT HAVE RELEVANT, COMPETENT, AND CREDIBLE EVIDENCE TO FIND THAT D.H. SHOULD NOT BE PLACED WITH FATHER WITHIN A REASONABLE TIME.
{¶35} “II. THE TRIER OF FACT ABUSED ITS DISCRETION BY NOT EXTENDING THE CASE FOR SIX MONTHS TO ALLOW FATHER TO REMEDY THE PROBLEMS PREMISED UPON D.H.‘S REMOVAL.”
Permanent Custody
{¶36} “[T]he right to raise a child is an ‘essential’ and ‘basic’ civil right.” In re Murray, 52 Ohio St.3d 155, 556 N.E.2d 1169 (1990), quoting Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972). An award of permanent custody must be based on clear and convincing evidence.
{¶37} Clear and convincing evidence is that evidence “which will provide in the mind of the trier of facts a firm belief or conviction as to the facts sought to be established.” Cross v. Ledford, 161 Ohio St. 469, 120 N.E.2d 118 (1954). “Where the degree of proof required to sustain an issue must be clear and convincing, a reviewing court will examine the record to determine whether thе trier of facts had sufficient evidence before it to satisfy the requisite degree of proof.” Id. at 477. If some competent and credible evidence going to all the essential elements of the case supports the trial court‘s judgment, an appellate court must affirm the judgment and not substitute its judgment for that of the trial court. C.E. Morris Co. v. Foley Constr. Co., 54 Ohio St.2d 279, 376 N.E.2d 578 (1978).
{¶38} Issues relating to the credibility of witnesses and the weight to be given to the evidence are primarily for the trier of fact. Seasons Coal v. Cleveland, 10 Ohio St.3d 77, 461 N.E.2d 1273 (1984). Deferring to the trial court on matters of credibility is “crucial in a child custody case, where there may be much evidence in the parties’ demeanor and attitude that does not translate to the record well.” Davis v. Flickinger, 77 Ohio St.3d 415, 674 N.E.2d 1159 (1997).
{¶39}
{¶40} Following the hearing,
{¶41} Therefore,
I.
{¶42} In his first assignment of error, Father makes two separate arguments. First, he contends the elements of
{¶43} We first note that the trial court determined, pursuant to
{¶44} As findings under
{¶45} Because Father has not challenged the twelve of twenty-two-month finding, we would not need to address the merits of Father‘s claim with regards to the trial court‘s determination that D.H. could not or should not be placed with Father within a reasonable time.
{¶46} However, even if we consider Father‘s argument, we find the trial court did not commit error in determining the child cannot be placed with Father at this time or within a reasonable period of time. Under
{¶47} Though Father contends D.H. could have been placed with him “in a few months,” the evidence at trial does not support his contention. Rather, a review of the record supports the trial court‘s conclusion that the child cannot be placed with Father within a reasonable time.
{¶49} Thompson testified Father has not substantially completed his case plan. He frequently failed drug tests, and has not been able to demonstrate sobriety for at least six months. Father has never attempted to begin parenting classes. Though he recently started to attend some counseling, this only occurred after this was a requirement of his probation, and after he was discharged multiple times from counseling previously in the case. Father himself testified he still has approximately six months left of his court-ordered counseling.
{¶50} D.H. has never lived with Father, as he has never progressed past supervised visitation at the agency during the case, which had been pending for almost two years at the time of the hearing. This is primarily due to Father‘s inadequate home conditions, continued drug use of Father, and his inability to complete counseling or attend parenting classes.
{¶51} Father also contends the “reasonable efforts” determination was against the weight of the evidence because Thompson failed to speak with Father‘s probation officer, and because Thompson was still waiting on records from Father‘s counseling providers at the time of the hearing. Father contends this counseling information and information from his probation officer was necessary to decide whether he remedied the conditions
{¶52} We disagree with Father. First, as to Father‘s probation officer, Thompsоn stated she needed to confirm with the probation officer whether Father tested positive for cocaine two months prior to the hearing. However, Father himself testified he relapsed and tested positive for cocaine two months prior to the hearing. This bolsters Thompson‘s testimony that Father has not remedied the conditions leading to D.H.‘s removal, as he still tested positive for drugs more than sixteen months into the case.
{¶53} As to the records from Father‘s counselors, Thompson‘s testimony was that she was waiting for the specific information about the counseling programs. However, this did not change her testimony that Father only started counseling when it was required by the terms and conditions of his probation. Further, even if Father completed counseling, he still has not completed other portions of his case plan. Additionally, the successful completion of a case plan is not dispositive on the issue of reunification. In re W.A.J., 8th Dist. Cuyahoga No. 99813, 2014-Ohio-604.
{¶54} Father also argues RCCS did not make reasonable efforts to assist Father in remedying the problems leading to the removal of D.H.
{¶55} First, the Ohio Supreme Court has held the trial court is not obligated by
{¶56} In its June 24, 2021 judgment entry, the trial court found RCCS made reasonable efforts to eliminate the continued removal of the child from the child‘s home and return the child to the home.
{¶57} Father contends the efforts of RCCS were not reasonable because they did not facilitate visitation for Father for approximately three months after he asked to resume visitation. However, Thompson gave a detailed explanation as to why these visits did not begin. As explained by Thompson, Father stopped showing up for visits after August of 2020, and Thompson could not locate Father despite her efforts to do so. Because this was the second time Father had stopped visits, RCCS had certain requirements for visits to resume; specifically, Father had to submit a clean drug test. Father admitted he tested positive for cocaine two months prior to the hearing. Thus, the delay in re-starting visits was not due to the lack of reasonable efforts by RCCS, but due to Father‘s lack of sobriety.
{¶59} Father‘s first assignment of error is overruled.
II.
Six-Month Extension
{¶60} In his second assignment of error, Father makes two distinct argumеnts. His first argument is that the trial court committed error in not extending temporary custody by six months, as, per Father‘s testimony, he will be able to finish counseling and have suitable housing in that amount of time.
{¶61} A trial court‘s decision to grant or deny an extension of temporary custody is a discretionary one. See
{¶63} Further, Thompson testified Father has not substantially complied with his case plan. When the case started, Father was discharged from counseling for non-compliance multiple times. He only started counseling more than sixteen months into thе case when it was required pursuant to the terms of his probation. Father consistently failed drugs tests and, as recently as two months prior to the hearing, tested positive for cocaine. Father currently lives in a home that is not suitable for a child. Father last visited with D.H. in August of 2020. While Father attempted to resume visitation approximately two months before the hearing, he was unable to pass a drug test until right before the hearing. Throughout the case, Father never made sufficient progress on his case plan to justify an expansion beyond supervised visitation at the agency.
{¶64} Finally, there is not reasonable cause to believe D.H. will be reunified with Father or otherwise be permanently be placed with him in six months. Despite Father‘s testimony, Thompson testified that she does not believe reunification could occur in the next six months.
{¶65} We find the trial court did not commit error in not extending temporary custody by six months.
Best Interest
{¶66} Father also argues the trial court‘s determination that the best interest of the child would be served by the granting of permanent custody to RCCS was against the manifest weight and sufficiency of the evidence. Father cites to the testimony that he is
{¶67} We have frequently noted, “[t]he discretion which the juvenile court enjoys in determining whether an order of permanent custody is in the best interest of the child should be accorded the utmost respect, given the nature of the proceeding and the impact that court‘s determination will have on the lives of the parties concerned.” In re Mauzy Children, 5th Dist. Stark No. 2000CA00244, 2000 WL 1799973 (Nov. 13, 2000), citing In re Awkal, 85 Ohio App.3d 309, 642 N.E.2d 424 (8th Dist. 1994).
{¶68} In determining the best interest of the child at a permanent custody hearing,
{¶69} The court must consider all of the elements in
{¶70} The focus of the “best interest” determination is upon the child, not the parent, as
{¶71} We find the trial court did not commit error in finding that granting permanent custody to RCCS was in the best interest of D.H.
{¶72} Father consistently failed drugs tests, most recently testing positive for cocaine, which prolonged his resumption of visitation with D.H. after he failed to show up to visits for approximately seven months. Thompson stated the home where Father lives is filled with trash, has cockroaches, and has no electricity or running water. Father has several significant mental health diagnoses, but is not on mediation or in counseling for them. D.H. does not know Father as her Father, and is not bonded to her.
{¶73} Thompson testified it is in the best interest of D.H. for permanent custody to be granted to RCCS. The GAL also stated it is in the best interest of D.H. to be placed into the permanent custody of RCCS, and went through each of the best interest factors in her rеport and explained how she came to her recommendation.
{¶75} We find the trial court properly considered and weighed the factors in
{¶76} Based on the foregoing, Father‘s assignments of error are overruled.
{¶77} The June 24, 2021 judgment entry of the Richland County Court of Common Pleas, Juvenile Division, is affirmed.
By Gwin, J,
Baldwin, P.J., and
Delaney, J., concur